This guidance has been prepared primarily for developers and their agents, with the aim of providing an overview of the Advance Payments Code (‘APC)’ and its application by Dorset Council.
In particular, this guidance covers:
The council strongly advises that you involve both the council and the Local Planning Authority in the early stages of your development proposals as this provides us with an opportunity to identify any potential issues before an application for planning permission is made.
It is the council’s practice to serve APC notices on all developments containing more than five dwellings.
The APC is a statutory mechanism for ensuring that new streets are constructed to a satisfactory standard and is set out under sections 219 - 225 Highways Act 1980.
The APC allows the council, in its role as Street Works Authority, to secure payment towards the future cost of making up a private street prior to the commencement of any building works associated with the development. The intention of the APC is to reduce the liability of future owners should the street be ‘made up’ at a later date using the provisions of the Private Street Works Code.
The APC can only be applied to new buildings, which will, when constructed, have frontage on to a private street. It does not apply to existing buildings or new buildings which will have frontage onto an existing highway.
The procedure begins when either plans for new buildings deposited with the local planning authority in accordance with building regulations are approved or an Initial Notice is deposited with the Local Planning Authority. The council then has six weeks to serve notice on the applicant (or the landowner if different), requiring payment of a specified sum of monies. The amount payable is that which, in the opinion of the council, would be recoverable under the private street works code in respect of the proposed building. The APC notice is served irrespective of the landowner’s intention for the adoption of the new street.
The council has six weeks from the approval of the deposited plans (or the deposit of an initial notice) in which to serve the APC notice. The council receives weekly reports from all of the local planning authorities’ within Dorset to this effect.
The notice served will specify the amount payable in respect of each building. If you are laying out a completely new street and own all of the land on which the buildings fronting the street will be built, then this will be the cost of making up the whole street to an adoptable standard.
Once the notice has been served, then no construction work may be commenced upon the buildings until such time as the requested sum has been deposited or secured to the council’s satisfaction. The notice does not prevent construction work from being undertaken on the street itself.
Payment can be made wither by way of cash deposit or a temporary bond. Please note that the council will only consider use of a temporary bond, where the landowner/developer has confirmed his intention to enter into a section 38 agreement or has applied for a private street exemption.
All cash deposits will carry simple interest from the date of payment until such time as:
The APC notice will specify the sum payable in respect of each building to which the code can be applied. This sum represents the amount which would be recoverable under the Private Street Works Code if the council were to make up the road and the councils reasonable administration costs.
The sum is calculated as follows:
The council’s rates are based upon SPON’s Civil Engineering and Highway Works Price Book and include an 8.5% uplift in respect of the council’s administrative costs. These rates will be subject to periodic review.
Where a development contains a number of different road construction types (e.g. a 7.3m wide carriageway with two contiguous 2m footways, a 5m carriageway with a contiguous 2m wide footway and a 1m service margin, and a 7.5m wide shared surface), the linear rates for individual APC sums will be varied accordingly, dependent upon the type of highway layout the plot fronts.
Section 220 of the Highways Act 1980 provides that the person on who the notice is served, or if he is a different person the owner of the land on which the building is to be erected, may within one month of the service of the notice appeal to the Secretary of State who may substitute a smaller sum than that specified by the council.
Section 219 (4) of the Highways Act 1980 sets out the exemptions to the APC.
Some exemptions are automatic and do not require the council to take any action whereas others are qualified and applied at the council’s discretion via the issuing a notice or the passing of a resolution.
An exemption will be issued if you enter into a Section 38 Agreement to provide for the future adoption of the roads.
The council acknowledges that some developers may not want the new street to be adopted and that on occasions the intended design and layout of a street may not or cannot meet the council’s standards making adoption under adoption impossible. In these circumstances the council will consider refunding or releasing the APC sum (as appropriate) where the developer/landowner enters into a Private Street Agreement.
| Section of the Highways Act 1980 | Exemption details | Automatic or qualified exemption |
|---|---|---|
| 219(4)(a) | the owner of the land on which the building is to be erected will be exempt, by virtue of a provision in the private street works code, from liability to expenses incurred in respect of street works in the private street | Automatic |
| 219(4)(b) | the building proposed to be erected will be situated in the curtilage of, and be appurtenant to, an existing building | Automatic |
| 219(4)(c) | where plans for the building were deposited with the district council before 1 October 1951 | Automatic |
| 219(4)(d) | where an agreement has been made by any person with the council under section 38 Highways Act 1980 providing for the carrying out at the expense of that person of street works in the whole (or part) of the street and for securing that the street or the part thereof, on completion of the works, will become a highway maintainable at the public expense | Qualified |
| 219(4)(e) | where the council, is satisfied that the whole of the street or such a part thereof, is not, and is not likely within a reasonable time to be, substantially built-up or in so unsatisfactory a condition as to justify the use of powers under the private street works code for securing the carrying out of street works in the street or part thereof(see Private Street Agreements) | Qualified |
| 219(4)(f) | Where the council is satisfied that within a reasonable period of time the street is not likely to be joined to a highway which is maintainable at the public expense | Qualified |
| 219(4)(g) | Where the whole street, being less than 100 yards in length, or a part of the street not less than 100 yards in length and comprising the whole of the part on which the frontage of the building will be, was on the material date built-up to such an extent that the aggregate length of the frontages of the buildings on both sides of the street or part constituted at least one half of the aggregate length of all the frontages on both sides of the street or part | Automatic |
| 219(4)(h) | where (in a case not falling within paragraph (g) above) the council is satisfied that the whole of the street was substantially built-up on 1 October 1951. | Qualified |
| 219(4)(i) | where the building is proposed to be erected on land belonging to, or in the possession of:
|
Automatic |
| 219(4)(j) | The building is to be erected by a company the objects of which include the provision of industrial premises for use by persons other than the company, being a company, the constitution of which prohibits the distribution of profits of the company to its members and the cost of the building is to be defrayed wholly or mainly by a government department | Automatic |
| 219(4)(k) | Where the council is satisfied:
|
Qualified (requires resolution) |
The council will refund the APC Deposit either:
The deposit is payable to the person who has borne the cost of making up the street.
If this person is not the owner, for the time being, of the land on which the building has been erected then no refund or release will be made until the owner of that land has been afforded the opportunity of making representations to the council.
The council will have due regard to any representations made by the landowner and we strongly suggest that the rights to receive the refund of the APC sum are reserved in any plot sales.
If the landowner or a third party commences construction of the buildings in breach of the APC notice, then the council will need to take legal action.
Once the APC Notice has been served DLI engineers will undertake monthly site inspections until such time as the requested sum has been received in respect of all affected buildings.
If a breach is noted, the engineer must record this within the DLI database and complete a site inspection report complete with photographs of the alleged breach.
A standard warning letter will be sent to the landowner and/or the person who is undertaking the construction. The letter will give notice of the council’s intention to take legal action if work does not cease immediately. Further inspections will be undertaken on a weekly basis to monitor construction work on the site.
If a further breach occurs, whether in respect of the same plot or another upon the same street, then DLI must instruct legal services to begin prosecution proceedings. Each contravention of the notice shall constitute a new offence and will be prosecuted as such.
Either the landowner or the person undertaking the construction work may be prosecuted. If convicted they will be liable to pay a fine of £1000 for each separate breach.
